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DePaolis v. Virginia Department of Corrections

United States District Court, W.D. Virginia, Roanoke Division

November 13, 2019


          Daniele DePaolis, Pro Se Plaintiff.

          Jeff W. Rosen, Pender & Coward PC, Virginia Beach, Virginia, for Defendants Moore, Bledsoe, Ball, and McCoy; Margaret Hoehl O'Shea, Assistant Attorney General, Office of the Attorney General of Virginia, Richmond, Virginia, for Defendants Virginia Department of Corrections and Tate.



         The plaintiff, a Virginia inmate proceeding pro se, brings this civil rights complaint under 42 U.S.C. § 1983 and Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, alleging that the defendants have provided him with inadequate medical care for a blocked salivary gland and shoulder discomfort. He has also moved for preliminary injunctive relief. After review of the record, I conclude that the defendants' Motion for Summary Judgment and Motion to Dismiss must be granted and that the plaintiff is not entitled to preliminary injunctive relief.

         I. Background.

         A. Plaintiff's Allegations and Claims.

         The plaintiff, Daniele DePaolis, is confined at Red Onion State Prison (“Red Onion”), a prison facility operated by the Virginia Department of Corrections (“VDOC”) in Pound, Virginia. He alleges that his throat started swelling on July 20, 2017. When he saw Dr. Paul Moore for this complaint, the doctor allegedly “misdiagnosed him, stating it's probably just a little swelling from your jaw. I'll order you some Motrin.” Compl. 1, ECF No. 1.

         Cheri Dickenson ordered DePaolis antibiotics for his throat issue, which he alleges “was a misdiagnosis of the problem.” Id. at 2. Dr. Moore eventually sent DePaolis to Dr. Hollyfield who allegedly “ran a cat scan and found a stone in [DePaolis'] saliva gland [and] [t]hen performed a botched surgery” on March 13, 2018. Id. at 1-2. Afterwards, Dr. Hollyfield said that DePaolis needed a more invasive surgery than he was able to perform. In January of 2019, DePaolis was sent to a specialist who allegedly “tried to fix what Dr. Hollyfield botched but something went wrong and they lost the stone.” Id. at 2. The specialist told DePaolis that it would be best to have the saliva gland removed or he would keep having problems with it. DePaolis states that in April 2019, when he filed this Complaint, the gland still “swells up with blood underneath his tongue, and bleeds out.” Id.

         DePaolis also complains that on April 9, 2018, Dickenson “misdiagnosed him and stated that there was absolutely nothing wrong with his shoulder and everything [was] normal.” Id. Nearly seven months later, two doctors at Sussex I State Prison (“Sussex I”) performed the same test on DePaolis's shoulder and reached “a major difference in results.” Id. As a result of their diagnoses, these doctors ordered an arm sling for DePaolis to wear and wrote orders for him not to be handcuffed behind his back and for a bottom bunk assignment. DePaolis alleges that these orders were “permanent.” Id.

         Despite these orders, when DePaolis returned to Red Onion, Nurse J. Bledsoe and Nurse Practitioner (“NP”) Ball allegedly told DePaolis on April 9, 2019, that there was nothing wrong with his shoulder. They informed him that he did not need an arm sling or to avoid being handcuffed behind his back. With NP Ball's approval, Nurse McCoy allegedly cut off the arm sling DePaolis was wearing. Bledsoe and NP Ball continued the prescription for naproxen pain medication that the doctors at Sussex I had written for his shoulder.

         Major Tate, the head of Red Onion security, has allegedly ordered his subordinates to handcuff DePaolis behind his back. When he is cuffed behind his back, the “shoulder to what feels like it pops out of place then pops back into place when the handcuffs are removed and he's able to bring his arm back around to the front of him. Which causes severe pain, suffering and numbness for duration of periods of a time, when he's handcuffed behind his back.” Id. at 4.

         The Complaint asserts the following claims: (1) Dr. Moore and Cheri Dickenson committed malpractice by misdiagnosing DePaolis' problems with his salivary gland, Dr. Hollyfield committed malpractice when performing surgery on DePaolis' salivary gland; and Dickenson committed malpractice by misdiagnosing DePaolis' shoulder problem; (2) Nurse Bledsoe and NP Ball were deliberately indifferent to a serious medical need when they deprived DePaolis of his arm sling and his order for front cuffing only; (3) Bledsoe, Ball, and McCoy used excessive force against DePaolis when they cut off his arm sling; and (4) Tate used excessive force against DePaolis by ordering officers to cuff him behind his back.

         The VDOC and Major Tate have filed a Motion to Dismiss, and defendants Moore, Bledsoe, Ball, and McCoy have filed a Motion for Summary Judgment.[1] DePaolis has responded to the defendants' motions, making them ripe for disposition.

         B. The Defendants' Evidence.

         In support of their Motion for Summary Judgment, Moore, Bledsoe, Ball, and McCoy offer records concerning the treatment provided to DePaolis during the period in question. In August of 2018, Dr. Moore, the Red Onion dentist, referred DePaolis to the Virginia Commonwealth University Medical Center (“VCU”) to be evaluated for oral surgery on a blocked salivary gland. DePaolis was moved to Sussex I. On January 16, 2019, after a CT scan requested by VCU, he was reevaluated and a laser ablation of the salivary glad was recommended. Dr. Robert Strauss performed that procedure on March 12, 2019. DePaolis had a follow up examination at VCU on March 20, 2019. The surgeon's report from that visit states, “No further surgical intervention required. Patient healing well with no sign of infection or reported pain.” Mem. Supp. Mot. Summ. J. Ex. 2, ECF No. 26-2 Two weeks of wound care with a topical antibiotic was recommended. After that care, the treating physician wrote that no further treatment was needed and that “the patient looks great.” Id. at Ex. 3, ECF No. 26-3.

         On April 5, 2019, DePaolis was transferred back to Red Onion, with a sling on his right arm, a brace on his right wrist, and a medical transfer note indicating the need for a daily dressing change until the wound healed. Red Onion staff placed him in medical housing, pending clarification of his needs. On April 9, 2019, Nurse Bledsoe, the Health Services Administrator, consulted with Sussex I medical personnel. She was informed that DePaolis's use of the sling would cause damage to his shoulder and that he had range of motion and function in that limb. Bledsoe also learned that DePaolis had used the wrist brace for a couple of years.

         On April 9, 2019, NP Ball examined DePaolis. She noted that an X-ray report from October of 2018 showed only a mild, degenerative changes in his shoulder. An earlier X ray of his right shoulder on April 9, 2018, showed “[n]o significant degenerative changes” and “[n]o acute abnormality” of the joint. Id. at Ex. 8, ECF No. 26-8. DePaolis was provided an ace wrap for his wrist. He did not mention his surgery, the wound, or any drainage during NP Ball's examination, or at any time thereafter. On April 10, 2019, Major Tate approved DePaolis for use of the elastic wrist brace, and ...

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